A. The Problem & Thesis
The central aim of this Article is to examine the post-civil rights push toward harsh punishment through the cultural lens of ritual. The United States is one of the most punitive countries on the planet--the country is the world leader in imprisonment and is one of the top five that executes capital defendants. However, determining the catalysts of this turn to harsh punishment has proved vexing. Scholars have adequately explained how the end of the welfare state, followed by a proliferation of drug laws, police profiling, plea bargaining, and “tough on crime” law and policy were the major forces behind mass incarceration. This Article employs a ritual framework to help explain why.
The Article argues that the spike in incarceration is a response to issues that have more to do with culture than crime; more particularly, with perceptions of danger, impurity, and superiority. This perspective itself is unoriginal, since sociologist Emile Durkheim long ago commented on punishment's social functions, which remains relevant to the present:
In [h] is view, crime and its punishment are a basic part of the rituals that uphold any social structure. Suppose it is true that the process of punishing or reforming criminals is not very effective. The courts, the police, the parole system--none of these very effectively deter criminals from going on to a further life of crime. This would not surprise Durkheim very much .... [T] he social purpose of the punishment is not to have a real effect upon the criminal, but to enact a ritual for the benefit of society.
By challenging traditional dogmas which view punishment as a rational and calculated response to crime, analysis of punishment through a ritual scope can add to the study of law. Sometimes changes that threaten the status quo, such as the passage of civil rights laws and controversial court decisions, produce social crises that lead to eras of harsh punishment, often disparately affecting “other” populations, mainly the poor and ethnic minorities. In these instances, punishment moves beyond the scope of its traditional justifications and becomes a tool for social control, which itself is a function of ritual activity. This Article shows how the gains purported to have been won in civil rights struggles were forfeited to the criminal justice system in a dynamic interplay of ritual punishment, power, and social control. The “civil ritual” thesis builds on two important themes. The first is “civil rights” since struggles over civil rights gave birth to the two distinct punishment trends discussed herein. The second theme is the concept “civil religion,” which provides a framework for understanding ritual forms in public and political institutions. Together, these themes help to elucidate that ““something” that drives Americans toward demanding harsh punishment.
This Article theorizes punishment, but is not a theory of punishment. It is not about justifications of punishment grounded in legal or social norms. Rather, it is an attempt to articulate the core characteristic of punishment that gives rise to normative justifications. It does not address the classical questions that produce a cohesive punishment theory or attempt to ascertain proportionality, the scale of punishment, or the methods of execution. Rather than address the questions that create a general account of legal punishment, this Article offers an interpretation of phenomena from a ritual perspective. This approach has largely escaped theoretical consideration by legal scholars, even though legal institutions charged with resolving conflict are entrenched in ritual activity. This Article's main contribution is to show how some of the harshness of punishment has to do with the strength of American religious and racial traditions.
Although arguing that legal punishment is a civil ritual may face resistance by legal academics on substantive grounds, it may also face opposition by some who think that open discussion of religion is in rather bad taste or represents “esoteric scholarship,” legal nihilism, or reversion to mysticism. However, the ideas presented here lead to no such scheme. Instead, this analysis helps answer a more fundamental question--why punishment in the first place?Indeed, determining the first principles of punishment is difficult since they are so commonplace so as to be nearly invisible. This Article's ritual emphasis, rather than leading legal scholarship astray, gets to the heart of why some must suffer so that others may feel secure.
What follows offers a primer in ritual theory, which will be the main interpretive scheme for the data presented. The civil ritual thesis unfolds in the next part, Criminal Justice & Christianity, which establishes the nexus between religion, ritual, and criminal justice, including religion's influence on substantive and procedural law. Next, The Gospel of America: Civil Religion, contextualizes American criminal justice within a grander scheme of civil religion in America and illustrates how the “secular” criminal system sits within a society saturated in civil religion, whose lifeblood is ritual performance, hence the term “civil ritual.” Building on this cultural backdrop, the following part, Civil Rights Turned Wrong, maps ritual theory onto discrete eras of harsh punishment in America. Beginning with the post-Reconstruction era of lynching and moving on to the modern era of mass incarceration, these periods depict punishment as ritualized payback against ethnic minorities and civil rights progress. The conclusion, Incense & Incarceration, offers some final remarks that underscore how penal policy corresponds to more than crime and elaborates on what happens to convicted offenders. There is indeed more at stake--including derailing civil rights and furthering political agendas.
